Defaults: Delaying the inevitable is not a good idea

By: Marie E. Matyjaszek

Law Office of Robert Matyjaszek

Filing a default in a case is one of my favorite pastimes, only second to receiving sparkly gifts.

Defaults can be entered for a variety of reasons, but the most common is the defendant's neglect to plead his case.

When a divorce is filed, the defendant has to respond to the complaint within a certain period of time after he or she is served with the initial pleadings.

If served in person, he only has 21 days from the date of service, and if he is served via snail mail, an answer must be filed within 28 days from the date of service being acknowledged.

Not answering the complaint can mean that a default will be entered, which effectively terminates the defendant's right to participate in the divorce proceedings, including a trial. A default judgment of divorce could be entered, with its terms being decided solely by the plaintiff.

If this happens, you do still have options - it's not as bad as the despair you feel when you have large dogs and look at your backyard after the snow melts.

Let's say you were lazy or didn't read the fine print on the summons, which provides you with an ominous warning about the perils of not answering the complaint.

As an attorney, I occasionally get a phone call from a colleague asking for me to voluntarily set aside the default that was entered in that particular case.

Depending on how far along the case is, I may agree to do so, knowing full well that I could be on the other side one day, asking that attorney to do the same for me. And the chance of a judge setting aside a default during the infancy of the case is a lot higher - most courts would rather have both sides be able to plead their case in order to ensure an equitable outcome.

However, if the divorce is close to being finalized, has been finalized with a default judgment already entered, or my client is adamantly against setting the default aside, the defendant or his new attorney can file a motion with the court to set aside the default and/or the default judgment.

In order to successfully do so, good cause must be shown and there must be "an affidavit of facts showing a meritorious defense." See MCR 2.603(D)(1).

Good cause can mean that the defendant has a viable excuse as to why he failed to answer the complaint, that there was something wrong with the proceedings, or it would be extremely unjust to keep the default in place.

If a judgment has not been entered yet, a personally served defendant must file to set the default aside before the judgment enters.

When a default judgment has already been entered, the defendant only has 21 days from entry of that judgment to file his motion to set it aside.

As an attorney, I realize that any default judgment that I enter will be carefully reviewed by the court because it has an obligation to ensure the judgment isn't blatantly unfair.

Some people think that if the defendant doesn't care enough to file an answer or otherwise plead his case, then that person has whatever it is coming to him.

The reality is that a court can actually refuse to sign a default judgment that it finds inequitable, ensuring your client is going to be really unhappy, and your reputation as an attorney is likely going to be questioned anytime you go in front of that same judge.

It's best to keep your client's vindictive side in check when drafting a default judgment.

It certainly makes it a lot easier to finalize the judgment when the defendant is defaulted, but if you're the defendant, delaying the inevitable isn't the best idea.

If you're on the other side of one of my cases, however, I don't mind if you keep quiet.

The author is an associate attorney at the Law Office of Robert Matyjaszek PLLC, Jackson, Michigan.

Her blogsite is: http://www.re-ciprocity.blogspot.com

She can be reached at (517) 787-0351 or by emailing her at matyjasz@hotmail.com.

Published: Mon, Mar 7, 2011

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